The debate around conjugal visits for prisoners

Why in News?

  • The State of Punjab has allowed conjugal visits for prison inmates in order to ensure the right to life and personal liberty of prisoners.

Conjugal Rights of Prisoners:

  • Conjugal rights broadly refer to the rights created by marriage i.e. the right of the husband or the wife to the company of their spouse.
  • With respect to prisons, conjugal visits refer to the concept of permitting prisoners to spend time privately with their spouses within the prison premises.
  • There have been several arguments about conjugal visits having positive impacts on prisoners in the form of psychological health benefits, preservation of marital ties and, the reduction in the rates of homosexuality and sexual aggression within prisons. 
  • Further, there are arguments that say that conjugal visits are a fundamental right of the spouses of the prisoners. 

Are Conjugal Rights of Prisoners recognised through Law?

  • Conventions, treaties and regulations such as the United Nations Standard Minimum Rules for the Treatment of Prisoners, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, etc. have recognised prisoner rights internationally.
  • These treaties and conventions guarantee prisoners the right to life and inherent dignity. 
  • The right to maintain family relations including conjugal visits is also included in these treaties. 
  • The concept of a conjugal visit has been adopted by various countries such as the U.S., Canada, Germany, Brazil, Russia, Spain, Belgium, Spain, Saudi Arabia and Israel.
  • Further, most of the Laws and Rules related to prisons across India also acknowledge the importance of maintenance of continuity in family and social relations.

Supreme Court’s views on extending conjugal rights to prisoners:

  • In Sunil Batra v.s Delhi Administration case, 1979, the Supreme Court held that the visits by family and friends are solace in isolation to prisoners and only a dehumanised system can deprive prisoners of this humane opportunity.
  • In the Jasvir Singh v/s State of Punjab case where a couple convicted of murder and on death row had filed a petition to the court to enforce their right to procreate. 
  • The key contention before the court was to determine whether the right to conjugality and procreation is a part of the right to life. 
  • The High Court in the case had held that the right to conjugality is also available to prisoners under Article 21 which is subjected to reasonable restrictions. 
  • However, in Meharaj v/s State case, 2022, the Madras HC while hearing the argument on whether conjugal rights form part of the right to life and personal liberty (Article 21), said that there should be differential standards in enforcement of Article 21 for law abiders and law violators. 
  • Further, the Court had said that even though conjugal visits could not be held as a fundamental right, the prisoner would still be eligible to avail leave for conjugal visits if there are extraordinary reasons such as infertility treatments.

Punjab government’s stand:

  • The State guidelines have clarified that conjugal visits are considered a matter of privilege rather than a right. 
  • According to the guidelines notified, the average time for conjugal visits would be two hours which would be allowed once every two months. 
  • Further, the visiting spouse must have proof of marriage and medical certificates which show that the individual is free from HIV or any other sexually transmitted disease (STDs), COVID-19 or any other infectious disease. 
  • Additionally, such facilities will not be provided to high-risk prisoners such as terrorists, child abuse convicts, death row convicts, sexual offenders, death row convicts, prisoners who suffer from HIV, etc.
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